More on Campaign Finance Reform

As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens Unitedhere.

I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.

After hearing the case originally last spring, the Court ordered supplemental briefing and re-argument to address the specific question whether the Court should overrule Austin, which affirmed the constitutionality of source restrictions on campaign expenditures from corporate treasury funds. This obviously was not a good sign for Austin or supporters of campaign finance restrictions on corporate campaign spending. However, the build-up to Citizens United reminds me of another election law case last Term and therefore gives me pause about expecting the Court to strike down federal restrictions on corporate campaign money that have existed in some form for a century. In NAMUDNO v. Holder, the Court decided against summary affirmance, scheduled arguments on the constitutionality of Section 5 of the Voting Rights Act, and led many to expect a decision striking it down. But the Court then surprised nearly everyone with an incremental ruling that trimmed back Section 5 based on an odd reading of the statutory language but left Section 5 otherwise constitutionally intact for the time being. It was easy to conclude that a Justice or two contemplated a more sweeping decision but ultimately backed away from the political controversy that would have followed a Court decision striking down the revered Voting Rights Act. Similarly here, it’s easy to imagine a Justice or two being deterred by the potential headlines about the Court opening the “floodgates” to corporate money following a decision outright striking down Austin. I cannot claim any particular ability to predict accurately what the Court ever does, but for the reasons above, it wouldn’t be entirely surprising if the Court ultimately produces a more incremental decision than many expect, even if all signs right now point to a sweeping decision against Austin.

Putting Citizens United aside, it seems to me that the larger problem in campaign finance reform has less to do with whether regulation can be characterized as “anything other than an effort to silence contrary views,” as Gerard puts it, and everything to do with what Sam Issacharoff and Pam Karlan call the hydraulics of campaign finance. Although I have written a bit about the ulterior motivations behind some forms of campaign finance regulation, I believe that there are plenty of reasonable arguments that characterize campaign finance regulation as something more than simple viewpoint discrimination. However, in my view and the view of many election law scholars, the practical reality in campaign finance is that money wants to enter the political system and tends to restore its own level in response to almost any constitutionally realistic form of regulation. Of course, the re-direction of money through new channels may be useful and worth the effort. But as an overarching matter, I’m not sure that re-directing money away from candidates and parties, for instance in the form of independent expenditures, is usually a good idea. And as the Court began to suggest in Caperton v. Massey, independent expenditures may not be much less corrupting when we’re talking about significant amounts of money. So far, we have a campaign finance system that is more regulated and transparent than ever before, but it’s not clear that many of us are very happy with the results.